Karnataka High Court
Puttamadappa S vs Gurusiddaiah on 19 January, 2024
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NC: 2024:KHC:2669
WP No. 19120 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 19120 OF 2016 (GM-CPC)
BETWEEN:
1. PUTTAMADAPPA S
S/O LATE SIDDAIAH
AGED ABOUT 60 YEARS
R/A T KAGEPURA VILLAGE
KIRAGAVALU HOBLI
MALAVALLI TALUK
MANDYA DISTRICT
PINCODE - 571 430
(THE BENEFIT OF SENIOR CITIZENSHIP
IS NOT CLAIMED BY THE PETITIONER)
...PETITIONER
(BY SRI. GIRISH N R FOR H K KENCHEGOWDA.,ADVOCATE)
AND:
Digitally signed
by PAVITHRA N
Location: high 1. GURUSIDDAIAH
court of S/O LATE DEVAIAH
karnataka
AGED ABOUT 58 YEARS
R/A DOOR NO.48, KPC COLONY
B R PROJECT
BHADRAVATHI TALUK
SHIMOGA DISTRICT - 577 301
2. PUTTAVENKATAMMA
W/O GURUSIDDAIAH
AGED ABOUT 49 YEARS
R/A DOOR NO.48, KPC COLONY
B R PROJECT
BHADRAVATHI TALUK
SHIMOGA DISTRICT - 577 301
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NC: 2024:KHC:2669
WP No. 19120 of 2016
3. MAHESHA
S/O LATE NANJAIAH
AGED ABOUT 34 YEARS
WORKING AS SDA
ASST EXECUTIVE ENGINEER
PWD, KR CIRCLE
BANGALORE
4. UMA
D/O LATE NANJAIAH
AGED ABOUT 31 YEARS
R/A T KAGEPUA VILLAGE
KIRAGAVALU HOBLI
MALAVALLI TALUK
MANDYA DISTRICT
PINCODE - 571 430
5. UMESHA
S/O LATE NANJAIAH
AGED ABOUT 29 YEARS
R/A T KAGEPUA VILLAGE
KIRAGAVALU HOBLI
MALAVALLI TALUK
MANDYA DISTRICT
PINCODE - 571 430
6. CHIKKAVENKATAMMA
W/O LATE NANJAIAH
AGED ABOUT 50 YEARS
R/A T KAGEPUA VILLAGE
KIRAGAVALU HOBLI
MALAVALLI TALUK
MANDYA DISTRICT
PINCODE - 571 430
7. PUTTADEVAMMA
W/O LATE MOTIKULLAIAH
AGED ABOUT 50 YEARS
R/A NENANURU VILLAGE
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NC: 2024:KHC:2669
WP No. 19120 of 2016
KIRAGAVALU HOBLI
MALAVALLI TALUK
MANDYA DISTRICT
PINCODE - 571 430
8. NANJUNDA
S/O LATE MOTIKULLAIAH
AGED ABOUT 37 YEARS
R/A NENANURU VILLAGE
KIRAGAVALU HOBLI
MALAVALLI TALUK
MANDYA DISTRICT
PINCODE - 571 430
9. SOMANNA
S/O LATE MOTIKULLAIAH
AGED ABOUT 30 YEARS
R/A NENANURU VILLAGE
KIRAGAVALU HOBLI
MALAVALLI TALUK
MANDYA DISTRICT
PINCODE - 571 430
10. SHANKARAIAH
S/O LATE MOTIKULLAIAH
AGED ABOUT 50 YEARS
R/A NENANURU VILLAGE
KIRAGAVALU HOBLI
MALAVALLI TALUK
MANDYA DISTRICT
PINCODE - 571 430
11. SHIVALINGAMMA
@ KULLAMMA
W/O SIDDAIAH
AGED ABOUT 47 YEARS
R/AT DODDABHUALLI VILLAGE
KIRAGAVALU HOBLY
MALAVALLI TALUK
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WP No. 19120 of 2016
MANDYA DISTRICT - 571 430
12. GOWRAMMA
W/O BORAIAH @ SANNAIAH
AGED ABOUT 55 YEARS
R/A THOREBOMMANAHALLI
C A KERE, HOBLI
MADDUR TALUK - 571 422
13. KULLAMMA
W/O SIDDAIAH
AGED ABOUT 57 YEARS
DODDABHUVALLI VILLAGE
B G PURA HOBLI
MALAVALLI TALUK
MANDYA DISTRICT
PINCODE - 571 430
14. NANJAIAH
HUSBAND OF SIDDAMMA
AGED ABOUT 80 YEARS
R/A KALYANIKOPPALU
B G PURA HOBLI
MANDYA DISTRICT
PINCODE - 571 430
...RESPONDENTS
(BY SRI.K CHANNAPPA.,ADVOCATE FOR R1, R2 AND R7 TO R9
SRI. V S NARAYAN., ADVOCATE FOR R3 TO R6 AND R10 TO R12
R13 -WP IS ABATED, V/O DATED 29.10.2021
R14-DEAD, R3 TO R6-SHALL BE TREATED AS LRS OF R14 V/O
DTD 16.06.2016)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 03.02.2016 ON I.A.NO.VII FILED UNDER ORDER I RULE 19(2)
R/W SECTION 151 OF CPC PASSED BY THE LEARNED SENIOR CIVIL
JUDGE & JMFC AT MALAVALLI IN R.A.NO.16/2011 VIDE ANNXURE-A
BY ISSUING A WRIT OF CERTIORARI AS ILLEGAL.CONSEQUENTLY,
ALLOW THE I.A.NO.VII FILED BY THE PETITIONER HEREIN ON THE
FILE OF THE LEARNED SENIOR CIVIL JUDGE & JMFC AT MALAVALLI
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NC: 2024:KHC:2669
WP No. 19120 of 2016
UNDER ORDER I RULE 10(2) R/W SEC. 151 OF CPC IN
R.A.NO.16/2011 VIDE ANNXURE-J.AWARD COST OF THIS WRIT
PETITION AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
- B GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The petitioner - impleading applicant is impugning the order dated 03.02.2016 passed in RA No.16 of 2011 on the file of the learned Senior Civil Judge and JMFC, Malavalli, dismissing his IA No.VII filed under Order I Rule 10(2) read with Section 151 of CPC seeking his impleadement.
2. Heard Sri. Girish N R, for Sri. H K Kenchegowda, learned counsel for the petitioner, Sri. K Channappa, learned counsel for respondent Nos.1 and 2 and 7 to 9 and Sri V S Narayan, learned counsel for respondent Nos. 10 to 12. Perused the materials on record.
3. Learned counsel for the petitioner submits that the petitioner is the applicant in IA No.VII filed under Order I Rule 10(2) read with Section 151 of CPC seeking his impleadment. His father Siddaiah had purchased the schedule property from the wife and son of appellant No.1 therein under the registered sale deed dated 05.03.2002. Initially, an agreement of sale -6- NC: 2024:KHC:2669 WP No. 19120 of 2016 was executed by the vendor in the year 1995 and the possession of the property was also handed over in favour of the purchaser Siddaiah. Siddaiah has constructed a small shed and started residing in the same.
4. Learned counsel submitted that the plaintiffs and defendant No.1 in collusion with one another, filed the suit seeking partition and separate possession and got decreed the suit. Siddaiah, the father of the applicant died on 17.07.2004. The applicant after coming to know about the appeal in RA No.16 of 2011, filed the application seeking his impleadement. The applicant is a necessary party to the proceedings, since he is in possession of the property as absolute owner. But the Trial Court rejected the application without assigning any valid reasons. Hence, he prays for allowing the petition and to allow the application in question.
5. Per contra, learned counsel for the respondents opposing the petition submitted that the plaintiffs and defendant No.1 are brothers. The suit schedule property has a small residential house. The plaintiffs are in possession of the same. They filed the suit against defendants seeking partition -7- NC: 2024:KHC:2669 WP No. 19120 of 2016 and separate possession in OS No. 151 of 2001. The said suit came to be decreed vide judgment and decree dated 13.04.2011. Impugning the same, defendant No.1 preferred RA No.16 of 2011. During the pendency of appeal, i.e., on 22.07.2015, the petitioner has filed IA No.VII under Order I Rule 10(2) of CPC claiming to be the owner of property, as the same was purchased by his father Siddaiah from the wife and son of appellant No.1. Plaintiffs denies the right of wife and son of appellant No.1 to execute the sale deed. Even if the sale deed was indeed executed, the transaction is hit by principle of lis pendence. Therefore, the petitioner cannot be permitted to come on record, when the original suit is already decreed. Even though, it is contended that the sale deed is of the year 2002, the impleading application is filed on 22.07.2015. All these facts and circumstance discloses that defendant No.1 has set up the petitioner to drag on the proceedings indefinitely and to deny the right of the plaintiffs. Considering all these facts and circumstances, the Trial Court rightly rejected the application. Therefore, he submitted that there are no merits in the contention and prays for dismissal of the petition. -8-
NC: 2024:KHC:2669 WP No. 19120 of 2016
6. The admitted facts of the case are that, the plaintiffs filed the suit for partition and separate possession of only one item of the property i.e., the residential site with a small shed. The said suit came to be decreed vide judgment and decree dated 13.04.2011. Defendant No.1 challenged the said judgment by preferring an appeal in RA No. 16 of 2011. During 2015, the petitioner herein has filed IA seeking his impleadement contending that his father Siddaiah had purchased the suit property from the wife and son of defendant No.1 under the registered sale deed dated 05.03.2002. Admittedly, Siddaiah the purchaser of the property died on 17.07.2004. It is also admitted that Siddaiah had left behind him other legal representatives apart from the applicant. There is no explanation in the affidavit as to why the applicant alone has filed the application seeking his impleadement.
7. The petitioner contended that under the agreement for sale executed by the vendors in the year 1995, the applicant was put in possession of the property, which was then a vacant site and thereafter, he put up shed and started residing at the same. But no scrap of paper is produced to substantiate such contention. Moreover, defendant No.1 was -9- NC: 2024:KHC:2669 WP No. 19120 of 2016 not the vendor. Strangely, he is said to have signed the sale deed as one of the attesting witness. As per recitals in the sale deed, the possession of property was handed over to the purchaser on the date of sale deed and not earlier to that. All these facts and circumstances create serious doubt about the contention taken by the petitioner.
8. The father of the petitioner is said to have purchased the schedule property under the registered sale deed dated 05.03.2002 i.e., during the pendency of suit OS No.151 of 2001, which was subsequently came to be decreed. Therefore, principle of lis pendence as provided under Section 52 of Transfer of Property Act will come into operation. The property involved in the suit cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to create right of any other party. The doctrine of lis pendence as provided under Section 52 of TP Act will definitely not annul such transfers effected by the parties to the suit, but it will only render subservient to the rights of the parties under the decree. In the present case, the petitioner cannot claim independent right. It is for him to establish that the vendors, i.e., the wife and son of defendant No.1 were having right to
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NC: 2024:KHC:2669 WP No. 19120 of 2016 execute the sale deed in respect of the schedule property and even if it is so, the purchaser Siddaiah will enter into the shoes of vendors. Therefore, he cannot claim any independent right to be impleaded in the appeal, that is pending.
9. I have gone through the impugned order passed by the Appellate Court. The Appellate Court has taken into consideration all these facts and circumstances and proceeded to dismiss the application. The impugned order does not suffer from any perversity or illegality. I do not find any reason to interfere with the same.
10. Hence, the following:
ORDER The writ petition is dismissed.
Sd/-
JUDGE SPV List No.: 1 Sl No.: 2